R v Olega [2024] SBMC 3; Criminal Case 125 of 2024 (15 March 2024)

IN THE CENTRAL MAGISTRATE COURT
IN THE SOLOMON ISLANDS
In the Criminal Jurisdiction

Criminal Case No: 125 of 2024

BETWEEN:
REGINA

AND:
ANTHONY OLEGA

Before: Michael Fagani
Mrs. Hiroshachi. F for Prosecution
Defendant - Self-Represented

Date of sentencing and mitigation: 12 March 2024
Date of sentence: 15 March 2024

SENTENCE

1. The defendant Mr. Anthony Olega entered a guilty plea to one count of careless driving and presence of alcohol in person’s blood. Upon your own guilty plea, I now enter conviction against you. Today, you appear before this court for your sentence.
   
2. The summary of facts before me shows that on the 9 December 2023 between 0530hr to 0600hr, you drove a motor vehicle to wit a white Rav4 registration no: MC5842 along Tandai highway road, in front of Rove fish & chips market. At that time, you are heading easterly direction and hit a blue Caldina registration no: T0214, which parked in front of the fish & chips market, and cause damage to that vehicle.
   
3. Police officers at the national response department in Rove, witness the accident so they attend and escort both vehicle to Kukum police station. At the police station, they conducted a preliminary Breathalyzer test on you, and result shows 0.158% of liquor presence in your blood. You were monitored again for ten minutes, and later another Breathalyzer test was conducted, and result shows 0.171% of alcohol presence in your blood.
   
4. Police also observed your eyes were sleepy and pale in colour at that time. You were then arrested and charged with one count of careless driving and presence of alcohol in person’s blood.
   
5. The maximum penalty for careless driving contrary to section 40(1) of the Traffic Act [Cap 131] is 5,000 per units or 6 months imprisonment or both and presence of alcohol in person’s blood contrary to section 43A(1)(a) of the Police and Transport Legislation (Amendment) (Alcohol Testing) Act 2016 (NO4. Of 16) is 10,000 per units or 12 months imprisonment or both.
   
6. By looking at the maximum penalties for both offences, both can agree that the offence committed is very serious. However, I must remind myself that it is trite law that each case has to be dealt according to its own set of facts.
   
7. The aggravating factors which the court see in your case is first, you committed two offences at one time. From the facts, I note you under the influence of liquor and then cause damage to another vehicle. You commit the offence of careless driving and at the same time, presence of alcohol in person’s blood.
   
8. Second, your careless driving cause damage to the other vehicle. There is no evidence produce before this court regarding the damage cause to the Caldina. However, you inform the court that the damage was already settle outside of court. I appreciate that, but the settlement of the damage outside of court does not mean that it takes away your criminality. It is only a mitigating factor on your sentence. The damage cause to the vehicle still remain a criminal offence of careless driving.
   
9. Finally, you must note that driving under the influence of liquor is risky. It risky because it can cause damage or even loss of life to pedestrian, other road users or yourself. In this case, it was fortunate that the damage you cause did not lead up to any loss of life at that time. However, that must contribute to make your case serious.
   
10. For mitigating factors, the court take into account the following mitigating factors on your behalf:
    • 10.1 You entered an early guilty plea at the first available opportunity. It serves court’s time and resources.
    • 10.2 You have no previous conviction.
    • 10.3 You self-represented.
    • 10.4 You cooperate well with your police bail.
    • 10.5 You remorseful for your unlawful action by saying apology to the court.
    • 10.6 The court also take into account your personal circumstances that you are 32 years of age and married with 2 children. You are employed and sole breadwinner for the family.
      
11. In imposing any sentence, the court must make sure that any sentence impose must deter you that breaking traffic law is serious. It must also teach you not to commit such an offence again in the future. The general public too must also know that careless driving whilst under the influence of liquor is serious in our jurisdiction. The sentence that I will impose must send out clear message to the public that this court will not tolerate such an offence when it comes to sentencing.
    
12. Let me reiterate what was alluded in the case of R v Cheffers^[1] (“Cheffers”) about driving under the influence of liquor. In Cheffer’s case, Ward CJ stated:
    

“Driving whilst under the influence of liquor is an extremely serious offence. Anyone who drives in such a state has deliberately puts his own and far more seriously, other people's lives at risk.^[2]”

13. I think what was alluded in the case of Cheffer’s is very simple and clear that driving under the influence of liquor is extremely serious. It serious because the outcome of careless driving is only accident since the state of mind is under the influence of alcohol.
    
14. To reach a just and fair sentence, this court relied on three cases. In R v Fanasia^[3], the defendant pleaded guilty to one count of presence of alcohol in person’s blood. The court sentence the defendant to pay a fine of $3,000.
    
15. In R v Soniluvu^[4], the accused pleaded guilty to a count of presence of alcohol in person blood and careless driving. The court imposed a fine of $4,000 for the offence of presence of alcohol in person’s blood and $1,000 for careless driving.
    
16. In Regina v Marau^[5], the defendant is a member of parliament and pleaded guilty to one count of presence of alcohol in person’s blood. The court imposed a fine of $5,000 on the defendant.
    
17. I had the opportunity to carefully consider the above cases, it seems that sentence imposed in those cases is higher. The reason is because this kind of offence seems to be prevalent in our society now. Drives seems to be careless when driving under the influence of liquor anytime they want. I think it is the time to impose a sentence that will send out message to the offender and public that this court will not tolerate such an offence by imposing higher sentence, to deter offenders and also to stop the prevalence of this offence in our society.
    
18. Having say this, I think a fine sentence is appropriate in this case. For count 1: careless driving, I will impose a starting point of $1,300 and count 2: presence of alcohol in person’s blood $4,500. I think this is appropriate reflecting the circumstances of both the offence.
    
19. In terms of sentence consideration, I will deduct $300 from count 1 and $500 from count 2 to reflect the early guilty plea and other mitigating factors in this case. Therefore, the resulting sentence would be:
    
    • 19.1 Count 1: Careless driving - $1,000 fine.
    • 19.2 Count 2: Presence of alcohol in person’s blood - $4,000 fine
      
20. Having taking into account all the circumstances of the case, I believe this sentence is appropriate for your case. You take this sentence as a lesson learn and mend your path to be a law-abiding citizen in the future. Having say this, and taking into account the aggravating factors of this case, mitigation factors, circumstances of the offending and your personal circumstances, I will now make the following orders:
    

ORDER

(1) I hereby sentence Mr. Anthony Olega to pay a fine of:

• 1.1 Count 1 – Careless driving - $1,000 fine;
• 1.2 Count 2 – presence of alcohol in person blood - $4,000

(2) I further order the sentence to be concurrent. It means the defendant will only pay $4,000 before 29 March 2024 by 4:30pm. In default, six (6) months imprisonment.
(3) Subsequent to order 1 & 2, I further order the defendant to be disqualified from driving for a period of 6 months as of today.
(4) Enter conviction against the defendant.
(5) 14 days right of appeal.
(6) Order accordingly.

Dated this 15^th of March 2024.

THE COURT

......................................................
MICHAEL FAGANI
Magistrate – First Class

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^[1] Unrep. Criminal Case No. 11 of 1989.
^[2] Ibid, n 1.
^[3] [2021] SBMC 13; Criminal Case 677 of 2021 (24 September 2021).
^[4] [2016] SBMC 25; Criminal Case 613 of 2016 (27 September 2016).
^[5] [2017] SBMC 7; Criminal Case 255 of 2017 (29 March 2017).